3rd International Conference on Management Science and Management Innovation (MSMI 2016)

Law of : , Standard of Care, and the Notion of Personal Responsibility

Qiang He, Jia-Ling Feng, Wan-Yun Huang College of Management, Tianjin University of Traditional Chinese Medicine, Tianjin, China E-mail: [email protected], [email protected]

Abstract—This essay’s main body divides into two parts. After a above and give a clearly understand of duty of care for brief background of the historical development of the law of negligence. negligence, the first part is to demonstrate the principles of Duty of Care and the Standard of Care, including duty of care II. BACKGROUND for negligent acts and the guidelines of breaching the standard The of negligence is a vital aspect of the tort law, of care. Then it will analyze the special duty of care within parent and child from three aspects. Finally the essay will because compare to other tort, there is a large amount of provide a conclusion to summarize all the information above negligence cases occurred in real life than others (Davies & and give a clearly understand of duty of care for negligence. Malkin, 2008). Before the landmark case of Donohue v Stevenson [1932], most of the counts did not consider similar Keywords-duty of care; standard of care; the notion of cases as negligence (Barravecchio, 2013). personal responsibility Since the 1980s, there was a development of negligent advice in Australia with the case Shaddock and Associates v. I. INTRODUCTION Parramatta City Council (1981) 150 CLR 225. And there Tort law is considered as an important branch of civil law. It were important legislative changes during the 2002-03 represents a „wrong‟ act or omission by the defendant which periods. After these kinds of improvements, negligence plays actually caused the plaintiff‟s loss or injuries (Pentony, Graw, a more important role in recent years. Lennard, & Parker, 2008). Negligence is one of the most III. DUTY OF CARE FOR NEGLIGENT ACTS significant legislative components in tort law. It is always considered as four divisions: the defendant must owe a duty The tort of negligence states that a reasonable person who of care to the plaintiff; the duty must be breached by the caused another person‟s loss or injury because she or he fails defendant; the breach must cause loss or injury suffered by to take reasonable care should provide compensation (Howe, the plaintiff; and the damage must not remoteness (Richards, Walsh, & Rooney, 2012). A negligence action is determined Ludlow, & Gibson, 2009). by three key issues: However, people discuss the legislation and have different  The defendant must owe a duty of care to the opinions on the simple „accident‟ and „personal plaintiff; responsibility‟. Some of them argue that if an innocent  The defendant must breach the duty of care; and person is injured nowadays, someone else, no matter it to be  The defendant‟s acts or omission must cause the another person, a corporation or the government, will be plaintiff‟s loss or injury. blamed for it. Others argue that the situation is not that In order to determine the duty of care for different cases, simple in real world and that the concept of „personal people usually consider it from two ways which named responsibility‟ still exists in law. historical approach and contemporary approach (Pentony, Accordingly, the purpose of this academic essay is to Graw, Lennard, & Parker, 2008). According to these two illustrate the Duty of Care (i.e. the 1st essential) and Standard approaches, people can easily identify the duty of care. of Care (i.e. the 2nd essential) essentials of negligence in detail and critical analyzing a specific aspect on parent‟s duty A. Historical Approach to child and third parties. It will provide strong evidences The established historical test to identify a duty of care for with case authorities and secondary authorities to support the negligence act is Donoghue v Stevenson [1932] AC 562. In statement as well. this case, the manufacturer of the ginger beer did owe the This essay‟s main body divides into two parts. After a brief plaintiff a duty of care, and because of the snail in the bottle background of the historical development of the law of the plaintiff suffered „nervous shock and severe negligence, the first part is to demonstrate the principles of gastro-enteritis‟, the defendant should response this Duty of Care and the Standard of Care, including duty of care negligence act and recovered compensation. for negligent acts and the guidelines of breaching the It also stated the two components of duty of care, standard of care. Then it will analyze the special duty of care „reasonable foreseeability‟ and „proximity‟, in the same case. within parent and child from three aspects. Finally the essay As Trindade, Cane and Lunney (2007) said, for reasonable will provide a conclusion to summarize all the information foreseeability, people will consider that in a particular situation, does the reasonable person foresee a loss or injury

© 2016. The authors - Published by Atlantis Press 1 of the plaintiff resulted from the defendant‟s behavior? On (2008) stated that they try to identify a „neighbourhood‟ the other hand, for proximity, does the defendant know his or relationship according to four features: her negligent act may affect the plaintiff because of the  The plaintiff‟s vulnerability, closeness?  The plaintiff‟s reliance on the defendant, Furthermore, Richards, Zwart and Ludlow (2013) use an  The defendant‟s assumption of responsibility, and example which provided by Hayne J to explain proximity as  The defendant‟s control of their behavior. “nearness, hearness or dearness”: Tame v New South Wales; When the Court cannot identify a case into an established Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at category, they can consider the vulnerability of the plaintiff, [25-26]. The best way to find out a duty of care existed is to whether or not the plaintiff is disadvantaged comparing with consider the relationship between the parties and the relevant the defendant in this matter. Does the plaintiff rely on the proximity to the negligent conduct. defendant, or the defendant‟s assumption of responsibility (if All in all, both of the two elements do not mean the any)? Then what is the level of the defendant to control their defendant ought to be actually foreseen the plaintiff‟s results. actions? After considering the four questions, the Court will However, what the defendant should know is that aware the get a sufficiently close „neighborhood‟ relationship existed to effects of doing the negligent act (Trindade, Cane & Lunney, recognize a duty of care. 2007). 4) Social policy B. Contemporary Approach Social policy may sometimes against the established duty of care in some situations. In other words, the defendant may In order to change their decided method from a „one-best‟ owe a liability of legal policy. approach to a „broad approach‟, the High Court decided to There are various forms of policy, which range from legally impose a new approach in the establishment of a duty of care recognized policies to a particular judge‟s personal values. due to a number of cases in the 1990s. They were not satisfied Therefore, judges should be quite cautious about interfering with „proximity‟ because it was not suitable for the defining with government policies. In Miller v Miller (2011), the test to identify a duty of care in any significant cases Court noticed that public policy means people should not (Pentony, Graw, Lennard, & Parker, 2008). Instead, the High allow illegal behavior, but in this case they particularly focus Court expressed four rules to achieve more correct identify of on the determination of whether the duty of care should be a duty of care. arise due to the detail and relationship between the parties 1) Reasonable foreseeability: (Sappideen, Vines, &Watson,2009). The question of reasonable foreseeability is a basic question Accordingly, this aspect allows the courts to compete with of whether the duty of care is owed. It is always the first the considerations of social policy and then determine a duty question asked in negligence. Chapman v Hearse (1961) is of care should or not be used (Howe, Walsh, & Rooney, the sample of this test. Besides, one of the most famous cases 2012). which considered as unforeseeable plaintiff is Palsgraf v Long Island R R Co 248 NY 339 (1928) (US). IV. STANDARD OF CARE For this aspect, the courts should determine that if there was Once the facts of the case confirm that the defendant owes a reasonable foreseeability risk of damage, such as injury or the plaintiff a duty of care, it does not mean the defendant‟s loss. In other words, if there was not a reasonable action result in damage or loss. Therefore, the plaintiff needs foreseeability, it could not be established the existence of a to provide more evidence to prove their statements. Hence, duty of care (Howe, Walsh, & Rooney, 2012). It is an the next step is considering the second essential of negligence, important essential of contemporary approach. breach of Standard of Care. Richards, Ludlow and Gibson 2) Analogies – recognized duties of care (2009) summarized that in order to determine the breach of In this method, the courts would review the previously cases Standard of Care, there are two issues to consider: to figure out whether or not the present case is similar to one  the extent of foreseeable risk that created by the of the established duty of care (Richards, Ludlow, & Gibson, defendant‟s conduct; 2009). For example, employers owe a duty of care to their employees, the driver of a motor vehicle owes a duty of care  the reasonableness or otherwise of the defendant‟s to other road users, and schools owe a duty of care to the response to that risk. students and so on. Depending on the judgments of those A. Requisite standard: that of a reasonable person previous cases, it is helpful for the courts to make decisions The standard of care is determined by comparing a notional of the analogous cases, especially for general duty of care, reasonable person‟s actions or omissions with the such as professionals to clients and manufacturers to defendant‟s conducts in the same circumstances. The customers. In other words, this approach is basically „reasonable person‟ is not a specific or real person. It is an classified cases into established categories, and then imaginary benchmark or device used by the courts considers the decisions with actual circumstances. (Sappideen, Vines, &Watson, 2009). 3) Neighbourhood factors Accordingly, the reasonable person should be examined the If there are not analogous cases, the courts would consider two attributes. Firstly, there is a presumption of average the significant factors of the case to work out the duty of care. intelligence, which is used to test the defendant‟s intelligence Under this situation, Pentony, Graw, Lennard, & Parker (Bagaric, Faris & Carter, 2011). If the defendant‟s

2 intelligence is higher than the average level, then this person V. ANALYSIS is not judged according to above average intelligence. After considering the general principles of duty of care, Otherwise, if the defendant has a lower intelligence, the there are still some special duty of care situations, such as person has to follow the standard average intelligence. educational authority to pupils, medical practitioner to Furthermore, the standard of care may also be variable patient and transferor to premises (Richards, Zwart & based on personal characteristics of the defendant, such as Ludlow, 2013). The second part of this essay will pay the level of experience. But it would always be an objective attention to a particular situation, discussing parent‟s duty to test based on board characteristics (Richards, Ludlow & child and third parties. Generally parents do not owe duty to a Gibson, 2009). child in respect of feeding and clothing and “raising” (Rogers B. Has the Standard been breached? v Rawlings [1969] Qd R 262), but they will owe a duty which After considering the reasonable person in a specific may result in danger or high risk situations to their child circumstance, the courts need to identify how the defendant (Sappideen, Vines, &Watson, 2009). breaches the duty of care. Thus, the courts established several A. General duty to child guidelines to determine a breach in the standard of care. In As regards parent‟s liability to their child, Richards, Zwart this essay, we list five guidelines as follow: and Ludlow (2013) said there is no doubt that a parent should 1) Probability of harm: liable for their negligent acts which might lead to injury to Refer to Bolton v Stone [1951] AC 850, the probability of their children. However, the Australian law does not have harm guideline states that the greater the probability of harm, any principle of parental immunity while the the greater amount of care which has to be taken (Bagaric, of New South Wales stated not only focus on the relationship Faris & Carter, 2011). It means if there is a high level risk of of parent and child, but also the particular situation. harmful injury or loss, the greater the standard of care that In order to deal with the complex circumstance, some would be shown by a reasonable person with a higher relevant factors need to be provided, including the control probability of a breach. level of parent over the child, the dependence and 2) Seriousness of possible injury vulnerability of the child, the foreseeable injury and other The second guideline is based on Paris v Stepney Borough factors which required by the modern law of negligence Council [1951] AC367. This guideline states that the more (Sappideen, Vines, &Watson, 2009). serious the possible consequences of injury, the greater the However, it does not mean a parent should liable the child degree of care which has to be shown (Howe, Walsh, & any general duty of care to control all activities. A typical Rooney, 2012). In other words, a greater likelihood of serious case in this situation is Robertson v Swincer (1989) 52 SASR injury will lead to the greater the probability of a breach if the 356. In this case, the damage is not caused by the child itself, reasonable person does not exercised the duty of care. but by a third party. Thus, the third party, instead the parent, 3) Costs and difficulties of avoiding or reducing the risk is liable for the damage. This guideline establishes that when the cost and difficulty of avoiding the risk is small and the actual risk is great, then B. Specific duty to child there is a greater likelihood of a breach if the reasonable A parent‟s general duty of care to the child does not state person does not take remedial actions (Bagaric, Faris & such a situation that the parent‟s negligent acts hurt the child. Carter, 2011). In other words, the defendant can take actions Therefore, the Court needs a specific duty of care to analyze to avoid the risk but he did not do that, which leads to a big cases. damage or loss, the situation should be considered as a In Rogers v Rawlings [1969] Qd R 262, a child was injured breach. when she was skiing water. The Court found out that the 4) Value of the defendant’s conduct mother had failed to supervise her daughter adequately and to The guideline states that if the defendant‟s conduct leads to remind the driver of the boat of the inexperienced child. less social or economic value, then the likelihood of a breach Whilst, depending on her position of knowledge, Rawlings of in the standard of care will be great (Luntz & Hambly, 2002). course owed duty of care in this situation. This rule is typically relevant to the social responsibility. If The rule is not limited to parents. It could be anyone who someone‟s action results in a decrease of social or economic has care of the child, like babysitter (Richards, Zwart & value, it can be considered as the people owe liability to the Ludlow, 2013). The key issue of this rule is to figure out who society. Thus, it is a greater likelihood that the person takes the responsibility to look after the child, either the breaches the standard of care. parent or the caregiver. 5) 4.2.5 Conformity with established standards C. Duty to protect third parties The final one shows that it is very important to keep conformity with any established standards, and vice versa This aspect discusses whether or not a parent owes a duty of (Richards, Ludlow, & Gibson, 2009). It means no matter in care to protect the third parties from the negligent actions of any trade or profession, the reasonable care is exercised as their children (Sappideen, Vines, &Watson, 2009). important evidence and will always conformity with In Smith v Leurs (1945) 70 CLR 256, the High Court established standards. recognized the parents taught their child how to play a slingshot but failed to warn the dangerous of this activity. Then the child caused the plaintiff‟s injury. Accordingly, the

3 High Court considered that it was sufficient for the parents to As the critical analyzing of the special duty of care, after response for the duty of care. demonstrate a parent‟s duty of care to the child and the third Nevertheless, the High Court state that the liability may party respectively, it provides strong evidences and relevant only be established on personal fault on the parent‟s part. cases to explain the liability as well. To sum up, firstly a Thus, the duty definitely exists, but the standard of care is not parent owes a duty of care for any negligent acts resulting complex and stands behind of a school authority (Richards, injury to their child. Secondly, the duty of care may also Zwart & Ludlow, 2013). extend to other people who caring for the child, not only by parents. Thirdly, a parent has no liability for general VI. CONCLUSION supervision of their child‟s actions. However, the duty may In conclusion, this essay aims to put a clear description on arise if the parent either fails to supervise a typically negligence of tort law in Australia, especially the first and dangerous activity or they cause the damage themselves. second essentials. And as a critical analysis on a special duty Finally, a parent can not liable for their child‟s tort conducts of care situation, which is the parent‟s duty of care to child (Richards, Zwart & Ludlow, 2013). and third parties, the essay introduces the basic information and supplies arguments of the test. ACKNOWLEDGEMENT The first essential of negligence is duty of care. It is also the This research was financially supported by the Significant first step for a successful negligence process as the plaintiff Project on Research Plan of Teaching Quality in Regular should provide strong evidences to establish the duty of care Institutions of Higher Education in Tianjin (Grant NO. (Howe, Walsh, & Rooney, 2012). Duty of care is divided into C03-1102) and the Brand Fields Project of Marketing of two parts, one is duty of care for negligent acts, and another is Tianjin 12th Five-Year Plan (Grant JinJiaoWeiCai NO. duty of care for negligent advice. The two aspects are quite [2011] 61). different. Duty of care for negligent acts initially uses historical REFERENCES approach, which indicated as „reasonable foreseeability‟ and [1] M. Bagaric, P. Faris, R. Carter, “: Compensation for „proximity‟. It could establish a duty of care from the two Harm”, in PALGRAVE MACMILLAN, 2011. features. Whilst in the 1990s, the High Court found that [2] J. A. Barravecchio, “The Tort of Negligence”, in Legaldate, vol 25, no. historical approach could not include all specific 4, 2013. circumstances, and then the contemporary approach began to [3] M. Davies, I. Malkin, Torts, 5th ed., LexisNexis Butterworths, use (Pentony, Graw, Lennard, & Parker, 2008). It contained Australia, 2008. four new issues, including reasonable foreseeability, [4] S. W. Howe, G. Walsh, P. Rooney, Torts, 2nd ed., LexisNexis Butterworths, Australia, 2012. analogies, neighborhood factors and social policy, which is [5] H. Luntz, D. Hambly, Torts: Cases and Commentary, 5th ed., useful for establishing a duty of care correctly. LexisNexis Butterworths, Australia, 2002. For the second essential, breach the standard of care, the [6] B. Pentony, S. Graw, J. Lennard, D. Parker, Understanding Business courts establish a presumption of a reasonable person which Law, 5th ed., LexisNexis Butterworths, Australia, 2008. is used to compare with the defendant‟s conduct in the same [7] B. Richards, K. Ludlow, A. Gibson, TORT LAW IN PRINCIPLE, 5th circumstances (Richards, Zwart & Ludlow, 2013). To ed., Thomson Reuters, Australia, 2009. consider the reasonable person, the courts usually follow two [8] B. Richards, M.D. Zwart,,K. Ludlow, Tort Law Principles. Thomson attributes: intelligence, and knowledge and skill. After that Reuters, Australia, 2013. the courts have developed several guidelines to help [9] F. Trindade, P. Cane, M. Lunney, The Law of Torts in Australia, 4th determining the breach in the standard of care. There are five ed., Oxford, New York, 2007. guidelines listed which can clearly figure out the breaches of standards.

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